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City of Pleasanton—Hidden Canyon Residences and Preserve <br />Biological Resources Draft EIR <br /> <br /> <br />3.3-14 FirstCarbon Solutions <br />https://adecinnovations.sharepoint.com/sites/PublicationsSite/Shared Documents/Publications/Client (PN-JN)/2148/21480016/EIR/3 - Draft EIR/21480016 Sec03-03 Bio Resources.docx <br />“waters of the United States” consistent with the Supreme Court’s decision in the Sackett case. In <br />Sackett, the Supreme Court adopted the Rapanos plurality’s test for adjacent wetlands: only those <br />wetlands with a continuous surface connection to other regulated waters, such that the two are <br />indistinguishable. <br />The USACE administers Section 404 of the federal CWA , which regulates the discharge of dredge and <br />fill material into waters of the United States. The term “waters of the United States” is defined in <br />USACE regulations at 33 Code of Federal Regulations Part 328.3(a) as: <br />1. Waters which are: <br />a. Currently used, or were used in the past, or may be susceptible to use in interstate or <br />foreign commerce, including all waters which are subject to the ebb and flow of the tide; <br />b. The territorial seas; or <br />c. Interstate waters; <br />2. Impoundments of waters otherwise defined as waters of the United States under this <br />definition, other than impoundments of waters identified under paragraph (a)(5) of this <br />section; <br />3. Tributaries of waters identified in paragraphs (a)(1) or (2) of this section that are relatively <br />permanent, standing or continuously flowing bodies of water; <br />4. Wetlands adjacent to the following waters: <br />a. Waters identified in paragraph (a)(1) of this section; or <br />b. Relatively permanent, standing or continuously flowing bodies of water identified in <br />paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to <br />those waters; <br />5. Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that <br />are relatively permanent, standing or continuously flowing bodies of water with a continuous <br />surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section. <br /> <br />The following are not “waters of the United States”: <br />1. Waste treatment systems, including treatment ponds or lagoons, designed to meet the <br />requirements of the Clean Water Act; <br />2. Prior converted cropland designated by the Secretary of Agriculture. The exclusion would <br />cease upon a change of use, which means that the area is no longer available for the <br />production of agricultural commodities. Notwithstanding the determination of an area's <br />status as prior converted cropland by any other federal agency, for the purposes of the Clean <br />Water Act, the final authority regarding Clean Water Act jurisdiction remains with the United <br />States Environmental Protection Agency (EPA ); <br />3. Ditches (including roadside ditches) excavated wholly in and draining only dry land and that <br />do not carry a relatively permanent flow of water; <br />4. Artificially irrigated areas that would revert to dry land if the irrigation ceased;